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Cory, Google is not perfect but the attacks on them for attempting this seem to me to be demonizing the wrong party. The problem is copyright law--a state legal system. The state is, as usual, to blame. Why some people are trusting the same state that foists IP law on us to protect is us mystifying. In attacking Google they are allying with the state (see my post Google Digital Library Plan Opposed by German Chancellor), which is the real enemy. I don't see any choice for google to accomplish the quasi-digital libertarian of orphan and other works other than its creative legal-settlement route.

Lohmann writes:

"Nobody likes this "only-for-Google" aspect of the settlement--in fact, Google has said that it would support orphan works legislation that would empower the Registry to make the same deal (or even a better deal) with others who want to use these unclaimed works."

I am not sure I see the concern here--seems to me only someone who cares about copyright would object to this.

"The settlement agreement even has a provision that makes it clear that the UWF can license others "to the extent permitted by applicable law"--what amounts to an "insert orphan works legislation here" invitation."

I'm not sure what is wrong with this. Even partially libertaring orphan works from the confines of copyright law would be good.

"But absent some legislative supplement to the revised Settlement 2.0, it still seems that any other company would have to scan these books, get sued, and hope for a class action settlement. That, of course, is the kind of barrier to entry that any monopolist would envy."

Again, it seems to me that Google is doing it the only way they see possible, given the terrible state regime.

"...But we shouldn't be satisfied with antitrust law here."

This line really bothers me. The EFF and others supposedly concerned with individual rights should recognize the state as the enemy. They should recognize antitrust law is completely unjustified; the real monopoly is the state, which arrogates a true monopoly to itself. This line implies that antitrust law is okay; it's not. It's immoral and unjustified. All antitrust law should be of course abolished.

In Thin Liberalism and the Folly of Burning Bridges, Timothy Lee makes (at least implicitly) several interrelated claims. First, that libertarians tend to oppose net neutrality. Second, that "free software intellectuals like Richard Stallman and Eben Moglen" are anti-IP. Third, that this is compatible with libertarianism. Fourth, that Moglen and Stallman, despite some unfortunate rhetorical excesses, hold views that are not really inimical to the free market. Fifth, that some libertarians, who (properly?) oppose net neutrality, wrongly accuse the anti-IP/free software types as being unlibertarian. Finally, that the reason these libertarians get it wrong is that they have succumbed to thinness.

It seems to me that most of these claims are at least partly incorrect, or confused. Let's take them one at a time.

Libertarians tend to oppose net neutrality. (I'm inferring this position from Lee's post.) Libertarians seem to me to be confused about this area, but the principled ones I am familiar with of course oppose net neutrality. I oppose it. On the other hand, the various forms of state support received by the telecom and other Internet infrastructure corporations should of course be abolished, which might alleviate most of the concerns of (left?) libertarians sympathetic to the aims of the net neutrality crowd. But libertarian position is clearly to oppose any state interference with the market to impose "net neutrality." Service providers should be able to charge whatever they want, in whatever manner or tiers they wish, if the market supports it; at the same time, any state favors, monopolies, protectionist regulations, etc., should of course also be abolished.

Free software intellectuals like Richard Stallman and Eben Moglen are anti-IP. (I'm inferring this position from Lee's post.) Not really. The problem, from the libertarian perspective is not that Moglen and Stallman are anti-IP; it's that they are not anti-IP enough. If I am not mistaken, Moglen, for example, is not completely opposed to copyright and patent. (See my Eben Moglen and Leftist Opposition to Intellectual Property.)

The ideas of open source/free software/anti-IP are compatible with libertarianism. Yes, this is true, as I have argued extensively. But this is a strange argument coming from Lee, who himself is not opposed to IP in any principled way (and neither are the leftist free software types, as noted above). For example, as I noted in $30 Billion Taxfunded Innovation Contracts: The "Progressive-Libertarian" Solution, Lee has written: "I can't agree with Baker that all copyright and patent monopolies are illegitimate. Copyright and patent protections have existed since the beginning of the republic, and if properly calibrated they can (as the founders put it) promote the progress of science and the useful arts. Like any government intervention in the economy, they need to be carefully constrained. But if they are so limited, they can be a positive force in the American economy." Unlike the views espoused by confused, quasi-economically illiterate leftists and utilitarian, minarchist libertarians, the proper, principled, libertarian position is that patent and copyright are completely and utterly unlibertarian and unjustified.

Moglen and Stallman, despite some unfortunate rhetorical excesses, hold views that are not really inimical to the free market. I tend to agree with Lee that various comments about "a bottom-up, participatory structure to society and culture, rather than a top-down, closed, proprietary structure" and "the democratizing power of digital technology and the Internet," etc., are not anti-libertarian. However, as noted in Eben Moglen and Leftist Opposition to Intellectual Property, Moglen holds clearly unlibertarian views, such as his view that free bandwidth is everyone's "birthright" (as socialist Finland believes, too-it recently enacted legislation making broadband access a legal right); and his opposition to regulating the EM spectrum as a property right (and his confused view that it already is, despite the state's nationalization of the EM spectrum).

Some libertarians, who (properly?) oppose net neutrality, wrongly accuse the anti-IP/free software types as being unlibertarian. This appears to be correct. Some libertarians are pro-IP and thus, mistakenly believing the free software socialists to be opposed to IP, confusingly criticize them on these grounds. In this respect, the confusion on both sides is similar to confusion about IP held by leftists and traditional libertarians: both the left and traditional pro-IP libertarians accept the false assumption that intellectual property is a legitimate type of property right. Libertarians who accept this premise thus favor IP, because they are pro-property; and leftists oppose IP because they are hostile to private property rights and mistakenly believe IP is a type of private property right.

The reason these libertarians get it wrong is that they have succumbed to thinness. So here we have Lee, who is pro-IP, criticizing libertarians for being pro-IP. Leaving this bizarre critique aside, is Lee right that "thinness" is what makes some libertarians too pro-IP? Lee maintains that "A libertarian whose conception of liberty is confined to limited government is going to be left rudderless when confronted with a pro-liberty movement whose concerns are orthogonal to the size of government." I think this is just confused. Thickness is actually problematic since it just muddies the waters, conflating issues pertaining to the permissibility of interpersonal violence with other interpersonal norms and institutions. The thickness theorizers add nothing of substance to our understanding of libertarian principle; instead, they pointlessly link the libertarian opposition to aggression to non-rigorous, malleable leftist gremlins like "hierarchy" and "bossism" and "pushing people around." I am, in some sense, a "thin" libertarian yet oppose IP root and branch, on principled, pro-property, pro-rights, pro-individualist, non-leftist grounds. Thinness is not the cause of confusion about IP. Rather, it is the lack of principle. It is the lack of principle and the adoption of flawed, bankrupt utilitarian ideas which leads libertarians to try to be "moderate", to support some IP, but not too much; and to be minarchist--that is, statist--rather than anarchist.